Let’s End Misleading Medical Ads

You’ve probably seen the late-night TV commercials. A menacing voice implies a product you or a loved one is using – a knee implant, an insulin pump or hernia mesh – is faulty or dangerous. You hear “medical alert” or “recall.” Maybe you’re even led to believe this is an FDA public service announcement. The narrator then encourages you to call a toll-free number and join a lawsuit. As a viewer, you’re one of the millions of people being subjected to a well-financed effort to create unscrupulous lawsuits using misleading ads. These ads have led to patient confusion, attacks on medical innovators, and barriers placed between patients and their doctors. 

The ads are part of an elaborate business model: a firm provides financing for legal action in exchange for a share of the damages or settlement amount. However, to generate such cases, the funders and plaintiff lawyers use misleading advertisements to recruit potential plaintiffs and consolidate them into multi-court district civil litigation.

The main targets of these lawsuit financing companies are medical technology and biopharmaceutical manufacturers. With this method, third-party financiers leverage the sheer number of claims as an intimidation tactic, creating the impression that the claims have more merit than they do. The goal is to force the defendant into settling, and the financing company takes a share of that settlement.

These ads are pushed out in tremendous volume. The barrage of distorted information has even led patients to disregard the instructions of their own trusted doctors, resulting in serious consequences. Patients might reject medication or a medical device their doctors recommend.

This lawsuit “industry” has become hugely profitable in the last decade, even as these practices undermine the civil justice system and the doctor-patient relationship. Fortunately, awareness of these issues in the last few years also has been increasing.

In 2019, the Federal Trade Commission wrote to seven legal practitioners requiring that their advertising statements provide credible, scientific evidence to support their claims. The FTC also required such advertisements to clearly identify themselves as such, rather than imply their messaging represents health care authorities or government organizations. The letters say the FTC will continue to monitor potentially deceptive advertising and follow up as necessary.

Organizations are taking action to raise public awareness of misleading ads both in the courts – through judicial education – and by working with like-minded partners in key states. These efforts are likely to continue as deceptive practices generated by this nefarious cottage industry proliferate.

While members of Congress may be aware of the problem, unfortunately, there isn’t a simple federal policy solution. States control their civil justice systems, and bringing the misleading ads under control requires a state-by-state legislative effort. The good news is consumers have allies in several states, and medical device innovators have worked with legislators to create real progress – including in Texas, Indiana, Tennessee, and West Virginia.

Despite these efforts, the trend is going in the wrong direction. Starting in 2021, the spending and number of ads have increased substantially. In just a three-month-period in 2021, spending on advertisements reached $3.3 million, and the number of advertisements almost doubled from previous years. In fact, there were nearly 140,000 advertisements run over the last 12-month period recorded.

So, while some progress has been made toward reform, there’s still a long way to go. Organizations that work to improve public health will continue working to raise awareness of this harmful issue – to consumers and the courts. Patients and their families should be spared the predatory advertisements and scare tactics in the guise of public health.

Scott Whitaker is the President and CEO of AdvaMed, The Medtech Association, the world’s largest trade association representing medical technology and device companies.